Great Atlantic & Pacific Tea Co. v. Garner

• Decision Date: 08 January 1943
• Docket Number: No. 13305.,13305.
• Citation: Great Atlantic & Pacific Tea Co. v. Garner, 170 S.W.2d 502 (Tex. App. 1943)
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. GARNER.
• Court: Texas Court of Appeals

170 S.W.2d 502

GREAT ATLANTIC & PACIFIC TEA CO. v.GARNER.

No. 13305.

Court of Civil Appeals of Texas. Dallas.

January 8, 1943.

Rehearing Denied April 9, 1943.

Appeal from District Court, Dallas County; Paine L. Bush, Judge.

Action by H. A. Garner, Jr., against the Great Atlantic & Pacific Tea Company to recover damages for personal injuries sustained while plaintiff was in defendant's employ.Judgment for plaintiff and defendant appeals.

Affirmed.

Touchstone, Wight, Gormley & Touchstone, of Dallas, for appellant.

White & Yarborough, of Dallas, for appellee.

YOUNG, Justice.

Appellee brought suit against the Great Atlantic & Pacific Tea Company for injuries sustained while employed as a checker in one of the local stores of that concern.Appellant, though eligible, did not elect to come under the provisions of the Workmen's Compensation Act, Vernon'sAnn. Civ.St. art. 8306 et seq.; hence, the action is one at common law, charging negligence of the employer; i. e., a failure to exercise ordinary care in the matter of providing plaintiff Garner with a safe place in which to work.

Following a jury verdict, judgment was rendered against appellant for $2,999.99.From a preponderance of the evidence the jury answers established that, (1)defendant failed to furnish plaintiff with a reasonably safe place to work, in that, the place in question was wet, slick and slippery; (2)defendant failed to furnish a rubber mat either in the check stand or at the place where defendant checked groceries to its customers at and prior to the time of plaintiff's alleged fall; (3)defendant failed to mop the floor of plaintiff's checker cage and make it dry immediately before his fall and injuries; (4)defendant failed to put something either behind or in said cage and upon which plaintiff could stand on the occasion and prior thereto; (5) there were substances of a wet, slick and slippery nature in the place where plaintiff stood as he performed his duties of checking groceries, which defendant failed to remove; (6)defendant failed to provide a dry place for plaintiff to stand while checking groceries to customers; (7)defendant placed and handled vegetables in said store in such manner as that the same were dripping with water and so wet that when placed in baskets by defendant's customers, water would drip on the counter and run down into the cage where plaintiff was working, and make the cardboard on which he was standing wet and slippery.The jury likewise answered that each of above factors constituted negligence on part of appellant, and a proximate cause of the injuries complained of.

The store operated by appellant was a modern self-serving grocery, where customers, on entry, by using a basket and cart, would pick up such groceries as they desired and bring them to the checking counters, arranged in four lanes, each, when in use, being served by a checker, one of whom at the time was plaintiff.The place where he stood was separated from the customers' lane by a counter, upon which was a cash register.Plaintiff would remove, one by one, the items purchased, checking and totaling the amounts by means of the register.The store had recently been renovated and the floor was of concrete.No specific provision had been made by appellant for covering the floor of the checker cage, except that corrugated paper boxes were available for tearing up and use to stand upon.It appeared that the vegetables sold by appellant were usually in a damp condition, for purpose of freshness; and that, in taking such purchases from baskets, water would drip therefrom and leaves of lettuce or other vegetables would drop to the floor of the cage, making it wet and requiring constant cleaning.A part of plaintiff's duties was to lift the loaded baskets from passageway onto the counter for checking; and while thus engaged, as he testified, on account of the condition of said floor, his feet slipped, resulting in the claimed injuries.

Appellant's grounds for reversal of the cause are summarized: (1) error in overruling its motion for instructed verdict, in that, plaintiff wholly failed to establish negligence of the store company; the evidence indisputably showing that the injuries were consequent upon plaintiff's own failure of duty; (2) error in refusing to submit the unavoidable accident issue requested by defendant, because same was raised by both pleading and evidence; (3) the jury made two separate answers to Issue 26 on amount of damages; hence the court erred in rendering judgment for $2,999.99 (being one of the dual answers); (4) since the evidence showed that defendant was not under duty to furnish a rubber mat, or mop the check stand, or to remove the substances inquired about in Issue 16 (of a wet, slick and slippery nature), the court erred in submitting issues thereon, numbered 5, 10 and 17.

The question of whether a master has failed to exercise ordinary care to provide the servant with a safe place in which to work is ordinarily one of fact; unquestionably so, under plaintiff's testimony and the attendant circumstances of this record.The court, therefore, did not err in overruling defendant's request for an instructed verdict.Also without merit is appellant's contention that it was plaintiff's own duty, under terms of his employment, to keep the cage floor clean; rendering inapplicable the well-settled principle that "* * * the master may relieve himself of liability by intrusting to his servant the duty of inspection and care in respect of a place he is engaged in making safe or which by contract he is bound to make safe * * *."39 C.J., p. 325, § 446.While plaintiff testified that he considered it his duty to clean the cage when he was not busy, yet the following is an excerpt from the store manager's own testimony: "Q.Now those cages, why you usually furnished those package boys around there to clean out these cages, didn't you?A.They had a bell; if they need help they called for the boy, it was up to them to get the boy there."It was further elicited from plaintiff that he had theretofore complained to Mr. Wilkins (manager) of the wet and slippery condition, asking for a rubber mat, which had been promised; that his fall occurred during a busy period of the afternoon; the cage having been cleaned shortly before, but that he had just reported to Mr. Wilkins a renewed unsatisfactory condition, followed by assurance from the latter of prompt relief.As already stated, we conclude plaintiff's own narrative of fact was sufficient basis for all issues comprehended in the court's charge.Both appellant's manager and his assistant testified that the cage construction was usual and customary for that type of grocery store; even so, the jury question still remained of "whether, under the facts of the...